Periodic updates on developments in disability law and related fields.

Monday, May 08, 2006

Oregon Adopts Sutton Mitigating Measures Rule Under State Law

In an opinion issued last Thursday in Washburn v. Columbia Forest Products, Inc., the Supreme Court of Oregon held that under Oregon's disability discrimination law the question whether the plaintiff is a "disabled person" must take account of any measures s/he uses to mitigate the effects of an impairment. The court thus adopted the same rule adopted by the U.S. Supreme Court in Sutton v. United Air Lines.

2 Comments:

Now that I have read this Oregon case, I really can't help myself. The Kistler, concurring, analysis leaves a bit out of the equation.

First of all, most severely disabled people with chronic pain know first hand that medical marijuana is a far superior pain control medication with a lot less harmful side effects than other pain meds such as Oxycontin or Vicodin, for example. The problem is, the pharmacueticals who control the lobbying money cannot patent medical marijuana in its most effective form, which is to grow and smoke it.

The Kistler concurrent just assumes the Controlled Substances Act is the end-all be-all of the analysis. There are two problems with this conclusion.

Both the Americans With Disabilities Act, Title II applicable to the State government, and the Rehabilitation Act of 1973, applicable to Federal agencies, contain a "Self-Evaluation" requirement. At least one case describes these "Self-Evaluation" mandates as the affirmative action requirement of these disability laws, the RA (hence also the ADA).

How is it so far fetched to give the "Self-Evaluation" mandate a reading that requires the States and Federal government to conduct non-pharmaceutical financed medical marijuana studies to determine whether the Controlled Substances Act must be reasonably modified to accommodate the effect of disabilities?

The RA is a little mroe problematic, but the ADA containes an express conflict preemption provision of its own, 42 U.S.C. Section 12201(b) that supercedes even conflicting "other federal laws." In other words, it is called a preemption provision, but as to "other federal laws" it is effectively an express conflict amendment/repeal provision over "other federal laws," including the Controlled Substances Act. At least in the 11th Circuit, this provision has been described as one of vertical and horizontal preemption. Shotz v. City of Plantation, Fla. (2003).

I do not know why so many people give superficial analyses to this medical marijuana problem. hundreds of thousands of disabled people are being wrongfully deprived of medication that can provide them a better quality life, and instead we legalize alcohol???

What I'm trying to understand is this whole concept of "mitigating" one's disability. If I (as a deaf person) make extensive use of text messaging, TTY's, flashing lights on various things (doorbells and whotnot) am I now no longer considered disabled? Isn't this sort of tautological, ie the mitigation required in ADA magically renders the person no longer covered by ADA which in turn puts the person back under ADA so that the mitigation can be applied...